Navajos protest a proposed water-rights settlement

by Sonja Horoshko | May 1, 2012 4:49 pm

Protesters express concern over a proposed Navajo water rights settlement and other issues during a march in Flagstaff, Ariz., on April 28. Cover photo by Frankie Rivera of Taala Hooghan Indigenous Established Infoshop

But water has always been scarce on the 27,000-square-mile Navajo reservation, where an estimated 40 to 50 percent of the people live without safe drinking water, indoor plumbing or the infrastructure to deliver water for residential, municipal or industrial development.

Much of the existing water is contaminated by past uraniummining and milling, abandoned mines and other current corporate operations such as Peabody Coal.

Settlements to establish Navajo water rights and bring water to the reservation have been years in the making, and advocates of the proposed Navajo-Hopi Little Colorado River Water Rights Settlement Agreement, recently introduced into the U.S. Senate, say it would resolve the issues and provide the tribe clean water at last.

The settlement is an agreement between all parties claiming use of the water in the Little Colorado River Basin. It must be approved by 30 entities, including both the Navajo and Hopi tribal councils.

Navajo Nation President Ben Shelley issued a statement on April 30 affirming his support of the settlement. But he added the caveat that it is now up to the Navajo Nation Council – 24 delegates representing all 110 Navajo chapters – to pass legislation that supports the bill.

The settlement has many critics who say it was rushed and the process was too hidden and secretive. Shelley has been greeted in recent appearances with placards and angry citizens calling him a traitor.

‘A stereotype’

U.S. indigenous tribal water rights are governed by federal law and the 1908 Winters Doctrine, which states that when the federal government established an Indian reservation, the government implicitly reserved a quantity of water necessary to fulfill the purposes of the reservation, and that the priority of all reserved rights dates back to the establishment of the reservation. On Feb. 14, Arizona Sen. Jon Kyl (R) created a furor when he introduced the waterrights settlement act, SB 2109.

Displayed behind him as he spoke was a photograph of a Navajo family working around a horse-drawn wagon at a watering point filling 55-gallon barrels with drinking water. He described the photo as current, taken in 2011, but Marshall Johnson, cofounder of the grassroots group Tó Nizhoni Ani (Beautiful Water Speaks), describes the photo as a stereotype.

“He brought in an old picture that was mid-1900,” Johnson said on a Progressive Radio Network podcast, “as if we are still hauling our water in that manner. We do continue to haul water today, but in half-ton pick-ups and trailer beds.”

Kyl in his remarks said, “…this daily activity limits economic-development opportunities and perpetuates the cycle of poverty. Legally, the tribes may assert claims to larger amounts of water, but as seen here, they do not have the means to make use of those supplies in a safe and productive manner.”

Many Navajos found the final comment insulting, an implication they haven’t progressed enough to develop industrial, municipal, and agricultural uses for the water and aren’t vested enough to build the infrastructure to deliver water to their communities. Critics also said the remarks reflect the tone of Western “use it or lose it” water law, which strongly favors parties that have already put water to “beneficial use” in agriculture, landdevelopment projects and power plants.

Max Goldtooth, former Tuba City Chapter president for the Navajo Nation, addresses President Ben Shelley and Navajo water commissioners at the first of seven forums about the proposed Navajo-Hopi Little Colorado River Water Rights Settlement Agreement on April 17 in Tuba City, Ariz.

Very little official information was released from the Navajo central government until President Shelley’s office suddenly announced an April 5 meeting in Tuba City, Ariz., called by Kyl and fellow Arizona Sen. John McCain (R) to discuss the settlement, just a few days in advance of that date.

The meeting was closed to the public and media, prompting even more outrage. Shelley was caught off guard by the opposition he faced.

He had intended to address the people in a parking lot after the meeting, but demonstrators carrying signs reading “Kill the Bill,” “Water is my Future,” and “Doo Da [no] SB 2109,” thronged around him and McCain as they headed for their vehicles.

Shelley could not calm the crowd. He reprimanded them, admonished them, turned his back, then came back to the microphone, shaking his finger and pleading with them to, “Hush up and listen!” like an angry father.

“It was a monumental time for the people,” said Don Yellowman, executive director of Forgotten Navajo People.

“We had only two days to organize, to be present. Still, so many turned out due to the collective effort of a coalition of grassroots organizations.

“It is not one group, but many working together. It represents a change in the Navajo people.”

Hasty introduction

Uncontaminated water is a rare commodity on the rez. One place it is found is the N-aquifer beneath Black Mesa in northern Arizona. The pristine water is pumped up to wash the coal produced by Peabody and used by the Navajo Generating Station power plant in Page, Ariz.

The settlement provides the tribes the right to use water from the mainstream Little Colorado River, capture water from washes in the Little Colorado basin, use unlimited water from the N-aquifer as well as the Caquifer (near Leupp, Ariz.) and all other waters from aquifers and alluviums. However, it is noted that the surface waters are difficult to capture. It provides for two federally funded pipeline projects, Leupp-Dilkon ($125.6 million) and Ganado Regional ($73.4 million) to bring water to 15 chapters of the Navajo Nation.

Additionally, a protective six-mile boundary extends outside the reservation border near Leupp. It is intended to protect water in the C-aquifer from new drilling by non- Indians. The settlement recognizes historic Navajo irrigation along the Little Colorado, permits the Navajo Nation (and only the Navajo Nation) to construct new reservoirs, and does not include a settlement of the nation’s Colorado River claims. Non-Indians are not allowed any new surface-water irrigation or reservoirs upstream of the Navajo Nation.

An N-aquifer management plan limits both the Navajo and Hopi tribes to no more than 2,000 acre-feet annual industrial use from the confined portion of the aquifer.

A provision also reserves Colorado River water for a future pipeline to serve chapters in the Western Agency near Grand Canyon and Flagstaff. The Western Pipeline was included in the former 2010 settlement passed at that time by the 21st Navajo Council.

It has been removed from the 2012 settlement and is not included in SB 2109.

The current SB 2109 includes provisions to provide the Navajo Generating Station and Peabody Coal continuing use of the water needed to extend their leases to 2044.

Critics of the settlement were quick to react to the fact that Kyl rushed to introduce SB 2109 on Feb. 14, the state of Arizona’s centennial, and said it was “propitious as the state of Arizona celebrates its centennial with the opportunity to resolve significant water issues for the Navajo/Hopi tribes and water users throughout the Southwest.”

Most Navajo and Hopi people had not been informed about the settlement prior to the introduction of the bill. That resulted in charges that the president, water commission and tribal attorneys had conducted an opaque negotiations process that had locked the people out.

Also, they were not consulted about planning for their own water needs for future economic development.

The settlement contains language saying the tribes “waive priority water rights to the surface waters of the Little Colorado River from time immemorial and thereafter, forever” – language that worries citizens.

The strongest criticisms are of the links to NGS and Peabody, and that the water flowing out of the reservation will be used to supply demand in urban areas in southern California and Arizona.

If the settlement does not pass the tribal councils, then the pending lawsuits over water claims will be litigated in Arizona court. The resulting decision could be years in coming and might bring only “paper” water rights, not necessarily the right to use all the water in the Little Colorado basin.

‘Huge quantities of water’

But supporters of the settlement say it is a fair compromise.

In a telephone interview, Stanley Pollack, assistant attorney general with the Water Rights Unit of the Navajo Nation Department of Justice, said, “Senator Kyl’s introduction in Congress was premature because the settlement had not been approved by the tribal councils, and the language used in the settlement was wrong.

“We advised non-Indian parties on the issue of language, but they chose to keep it in. If I were a layperson looking at that, I think I’d come up with the same [negative] opinion,” he said

“But we are not giving these rights away. We are resolving claims. Navajo/Hopi [nations] get all the water falling on the Little Colorado basin, arising from it, that is under it, unconditionally – all the water, including Blue Springs, near Cameron. It is not quantified because there are not limits. Navajo/ Hopi get it all.

“And it also prohibits all non-Indians from building any reservoirs at all. No new non-Navajo surface-water use off of Navajo land for irrigation. They cannot get more.”

Navajos get 160,000 acre-feet per year, non-Indians get 60,000 acre-feet per year, he said, “which is recognizing the right to use more than twice what everybody else is using combined.”

He added, “We are eager to let the people know there are huge quantities of water in the settlement for them.”

By far the biggest sticking point in SB 2109 for Navajo activists is the inclusion of the Navajo Generating Station and Peabody Coal lease extensions until 2044, giving the corporations rights to use water from the Naquifer for fees so low most call it free.

“NGS and Peabody will not stop the settlement,” Pollack said. “They are in the legislation, but not in the settlement. If the Navajos say no to the leases, then we don’t get the Colorado River water for the Navajo- Gallup pipeline [already funded and being built in the Eastern Agency], but we still have our settlement.”

Police presence

Shelley held seven public forums in chapters directly affected by the settlement. For the first forum in Tuba City on Feb. 17, Shelley ordered a large police presence, including a SWAT team on the roof nearby. Police patrolled the gates at the edge of the sidewalk to the building, allowing no placards or protest images on clothing inside the building, and kept the crowd in a line while they went through a security wand check at the entrance.

Max Goldtooth, former Tuba City Chapter president, told the Free Press it was an absurd show of strength, “as if they’re the tough guys,” he said.

It was clear that the tenor of the meeting was not positive.

Several speakers told their president he should not treat his own people with such disrespect, that the extreme security was unnecessary.

At one point Shelley addressed the crowd, asking for forgiveness for his behavior April 5. “I apologize,” he said, “I am a human, too.”

Numerous critics at the forum raised concerns about the urgency of the legislative process and the opaque settlement negotiations. They also said corporations are not Navajo people and should not be included in SB 2109 as if they have rights to Navajo water.

People also expressed alarm about the requirement that they waive future claims to Little Colorado water usage, suggesting that it deconstructs the Winters Doctrine.

After the next six forums, reports circulated on activist sites showing the same high security at each. Grandmothers and grandfathers waited in line, youths were not allowed to speak and the majority of speakers were shut down before they could finish. Most people voiced opposition to the settlement.

Yellowman said, “We don’t want the U.S. or Navajo Nation central government telling us what they’ll do for the people, but to sit with us as partners. We can help our government and that can lead to a big partnership, a fair exchange of concerns and ideas. The forums have been very disappointing.”

Sitting down together

Walter Phelps, council delegate for five chapters in the Western Agency, told the Free Press after the Leupp forum, “When I was a member of the public, not an elected official, I was very uncomfortable with the legislation the 21st Council passed in 2010. It passed and yet Kyl didn’t even try to push it in Congress. I think he could have gotten funding, even for the Western Pipeline.

“Now, in this 2012 version, the pipeline isn’t in there, even though the water is reserved for it from the Colorado River, but the Navajo Generating Station language is now in SB 2109 and that is not favorable to me.”

Activist and college graduate Nikke Alex said the settlement “blackmails our government with the extended leases until 2044 and threatening that if Navajo won’t sign the settlement the government won’t fund the 350-million-dollar infrastructures. A baseball team costs more than that!”

Water is sacred, she says, “It has rights, too – not to be contaminated; to be used conscientiously, not for golf courses and swimming pools in Phoenix and Las Vegas. Ninety-five percent of the power produced at NGS is used to push the water through the Central Arizona Project out of Lake Havasu to Tucson through an uncovered canal, evaporating in the desert.”

The next Navajo Nation Council Session is in July. Addressing the issue before then requires a special session, according to Phelps, and, as of press time, “there has not been a delegate step up to sponsor the legislation.”

“Now is the time for activists, government officials, elders, youth, anger and peace to sit together, find a way through this, “ said Cameron Chapter President Ed Singer.

“The activists bring the missing vitality of research skills, and connectivity, and now we have enough to decide what we will or won’t, honestly can and can’t do about our waters.”